Abuja Division of the Court of Appeal has given the Economic
and Financial Crimes Commission, EFCC, nod to continue its investigation of
Capital Oil and Gas Limited and its Managing Director, Ifeanyi Ubah, for
alleged complicity in a N43.29bn petroleum subsidy scheme fraud.
EFCC and the police had levelled them allegations of obtaining
subsidy payments by false pretences, stealing, money laundering and forgery
with respect to the alleged fraudulent payment of N43.29bn in the transactions
conducted in 2011.
A unanimous judgment of a three-man bench prepared by
Justice Emmanuel Agim and consented to by Justice Akomolafe-Wilson (bench head)
and Justice Tani Yusufu, was released on Sunday.
Ifeanyi Ubah is still in the detention of the Department of
State Services (DSS) for investigation into a separate case of alleged
diversion of N11bn worth of Federal Government’s Premium Motor Spirit (petrol).
In the lead judgment, Justice Agimnullified the July 25,
2013 verdict of Justice Abdukadir Abdu-Kafarati of the Federal High Court in
Abuja, who had made an order of perpetual injunction restraining the EFCC, the
Inspector-General of Police and the AGF, from prosecuting Ubah with respect to
the subsidy fraud allegations.
Justice Agim, also in the lead judgment of the appeal court,
nullified all of Justice Abdul-Kafarati’s orders, including the one quashing
the November 3, 2012 interim investigation report of Aigboje Aig-Imoukhuede-led
Presidential Committee on Verification and Reconciliation of Subsidy Payments
to Petroleum Marketers.
He held that by virtue of the Aig-Imoukhuede committee’s
report, and the first two reports made by the Commissioner of Police in charge
of Special Fraud Unit ‘D’ Department of the Force Criminal Investigation
Department, Mr. Tunde Ogunsakin “there was a reasonable basis for the suspicion
of the first and second respondents (Ubah and Capital Oil) of committing the
said offences.”
The Court agreed with EFCC’s lawyer, Mr. Rotimi Jacobs
(SAN), that the agency “can competently reopen and continue investigation into
the matter,” after the police, through Ogunsakin, had issued a third report of
investigation clearing Ubah and Capital Oil contrary to the findings of the
first two reports by the same police officer indicting the businessman and his
company.
Justice Agbim noted that “the fuel subsidy fraud involved
corruption and fraud on a very massive scale”; that it involved many oil
companies and officials of government’s regulatory agencies “looting and
stealing of trillions of naira from the Federal Government of Nigeria and
threatening the security and economy of Nigeria.”
He frowned that in spite of sabotage, Justice Abdu-Kafarati
of the Federal High Court in Abuja had granted Ubah’s application for
fundamental human rights “in such a manner as to prevent or frustrate
investigations into the scam.”
He held that the trial court issued injunctions in Ubah’s
case to stop ongoing process and prevent even future process “without regard to
the very serious nature of the crime alleged” and its “far-reaching destructive
effect on the society.”
In upholding a joint appeal by the EFCC and the Attorney
General of the Federation against the Federal High Court’s judgment, Justice
Agim held that the enforcement of a person’s rights must not be used or allowed
to shield the person from “the due process of criminal law”.
He held that the legal system had provided remedy for a
suspect in the civil suit for relief from malicious process “if after the
investigation with or without arrest and detention” or “after the trial the
evidence does not establish the guilt of the suspect.”
He ruled, “Such determination must involve a consideration
of a whole range of issues to ensure that the enforcement of a person’s
fundamental or other rights is not used or allowed to prevent or frustrate the
initiation or continuation of the due process of criminal law against him by
the competent law enforcement authorities or is not used to shield the person
from the due process of criminal law or is not used to prevent or frustrate the
competent law enforcement agency from exercising its constitutional or
statutory powers of crime prevention, control, investigation and prosecution o
is not used to defeat the legitimate public expectation of law enforcement or
is used to acquire toga of defacto impunity for himself.”
Justice Agim also held that the judgment of the Lagos
Division of the Federal High Court delivered on February 18, 2013 in favour of
Ubah and his company had since 2015 been set aside by the Court of Appeal,
Lagos, in 2015.
He also rejected the documents which all cleared Ubah and
relied on by Ubah’s lawyers, Mr. Raphael Oluyede and Babs Akinwumi in the
course of the appeal.
He held that the documents, including the legal opinion
offered by the then Attorney-General of the Federation, Mr. Mohammed Adoke, in
2014 and a letter anchored on Adoke’s legal advice and sent by the then
Chairman of the EFCC, Mr. Ibrahim Lamorde, to the Federal Ministry of Finance,
were nothing but opinions which could not stop further investigation when the need
arose.
Justice Agim also held that report of the House of
Representatives which investigated fuel subsidy fraud, relied on by Ubah and
his company did not absolve them from “complicity in the massive fraud in the
petroleum subsidy payments”.
The appeal court added that since the House of
Representatives or any chamber of the National Assembly lacked the power to
conduct criminal investigation, its report “cannot be used to prevent or shield
any of the petroleum marketer and supply companies from being investigated by
competent investigative authority upon a criminal complaint that it
fraudulently received billions of naira as imported petroleum subsidy payments
when it did not import or market the petroleum in Nigeria.”
By Wale Odunsi
